Citation Nr: 0838818
Decision Date: 11/10/08 Archive Date: 11/20/08
DOCKET NO. 03-30 848 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
Entitlement to service connection for a chronic bilateral
knee disorder to include Osgood-Schlatter's disease.
REPRESENTATION
Appellant represented by: Virginia Department of
Veterans Services
ATTORNEY FOR THE BOARD
J. T. Hutcheson, Counsel
INTRODUCTION
The veteran had active service from January 1967 to January
1969.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a March 2003 rating decision of the
Roanoke, Virginia, Regional Office (RO) which, in pertinent
part, denied service connection for a chronic bilateral knee
disorder to include Osgood-Schlatter's disease. In November
2006, the Board denied service connection for a chronic
bilateral knee disorder to include Osgood-Schlatter's
disease. The veteran subsequently appealed to the United
States Court of Appeals for Veterans Claims (Court).
In April 2008, the Court granted the parties' Joint Motion
for Remand; vacated the Board's November 2006 decision; and
remanded the veteran's appeal to the RO for additional action
consistent with the Joint Remand.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. The Department of Veterans
Affairs (VA) will notify the veteran if further action is
required on his part.
REMAND
The parties' April 2008 Joint Motion for Remand directs that
clinical documentation from St. Mary's Clinic pertaining to
treatment of the veteran's knees should be requested for
incorporation into the record and the veteran should then be
afforded an additional VA examination for compensation
purposes.
Accordingly, the case is REMANDED for the following action:
1. Review the claims file and ensure
that all notification requirements and
development procedures contained in 38
U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West
2002 & Supp. 2007); 38 C.F.R. §§ 3.102,
3.159, 3.326(a) (2007 as amended) are
fully met.
2. Then contact the veteran and request
that he provide information as to all
post-service treatment of his bilateral
knee disability including the names and
addresses of all health care providers.
Upon receipt of the requested information
and the appropriate releases, the RO
should contact St. Mary's Clinic and all
other identified health care providers
and request that they forward copies of
all available relevant clinical
documentation for incorporation into the
claims file.
3. Then schedule the veteran for a VA
examination for compensation purposes to
accurately determine the current nature
and etiology of his bilateral knee
disability. All indicated tests and
studies should be accomplished and the
findings then reported in detail.
The examiner should advance an opinion
addressing whether it is more likely than
not (i.e., probability greater than 50
percent); at least as likely as not
(i.e., probability of 50 percent); or
less likely than not (i.e., probability
less than 50 percent) that any identified
chronic knee disability existed prior to
service entrance; if so, increased in
severity beyond its natural progression
during active service; originated during
active service; or is in any other way
causally related to active service.
Send the claims folder to the examiner
for review of pertinent documents
therein. The examination report should
specifically state that such a review was
conducted.
4. Then readjudicate the veteran's
entitlement to service connection for a
chronic bilateral knee disorder to
include Osgood-Schlatter's disease with
express consideration of 38 U.S.C.A.
§ 1153 (West 2002) and 38 C.F.R. § 3.306
(2007). If the benefit sought on appeal
remains denied, the veteran and his
accredited representative should be
issued a supplemental statement of the
case (SSOC) and given the opportunity to
respond.
The veteran is free to submit additional evidence and
argument while the case is in remand status. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
The veteran's appeal must be afforded expeditious treatment
by the RO. The law requires that all claims that are
remanded by the Board or by the Court for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
_________________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).